The UK government’s inversion of accountability

What to make of a government that increasingly excuses its actions from legal accountability while demanding more and more accountability from citizens?

Prime Minister David Cameron (Conservative Party website)

What does democratic accountability
entail? At a minimum, we expect our government to comply with fundamental human
rights norms and with the rule of law, to take responsibility for its actions
and offer redress to those adversely affected, through the courts. But David
Cameron’s government is changing the meaning of accountability. It is
increasingly treating compliance with international legal norms and human
rights as optional. It is systematically attacking the mechanisms of legal
accountability, through legal aid cuts, removal of appeals, hiking court fees
and even by vilifying human rights lawyers. While seeking to loosen, dilute or
remove mechanisms of redress for violations, it is demanding more and more
accountability from citizens – not just in terms of our own actions being
policed more intensively, but also forcing us to become involved in the
policing and monitoring of others.

Human rights norms optional

In October 2015, the ministerial
code was amended to remove references to ministers’ obligations to comply with
international law when carrying out their duties. This quiet change, which the
government insists will make no difference in practice, seems to come from the
same approach to government which underlay the justice ministry’s 2014 proposal
to make the European Convention on Human Rights ‘advisory only’: the idea that
government compliance with international human rights norms it has signed up to
is optional.

So we should not be surprised at
the announcement on 7 March that UK troops are to help intercept and return refugees trying to reach
Europe from Turkey – actions denounced a few years ago by the EU Commission and by the European Court of Human Rights as ‘collective
expulsions’ violating EU and international human rights law. The week before,
home secretary Theresa May announced a ‘compassion quota’ which would
limit numbers of refugees accepted outside official resettlement programmes and
possibly deny access to refugee determination procedures to overstaying
students and foreign national offenders – measures which would breach the
Refugee Convention. It appears that the government, having realised that
repealing human rights laws would be too fraught with political and legal
difficulties, has decided simply to ignore them when they interfere with policy
objectives. Whether in the field of foreign policy, arms sales, business
operations abroad or refugee reception, the government has sought to avoid
international legal obligations, or dilute them by re-interpretation.

The UK is of course not the only
European state seeking to evade international obligations towards refugees, nor
the only EU state to treat rescue, decent reception and treatment of refugees
as a ‘pull factor’. But the UK’s island status has left it largely unaffected
by the surge in refugee numbers across Europe over the past year. This renders
more shameful the Home Office’s refusal to participate in the EU’s inadequate reallocation
scheme, or to contemplate a change in the Dublin regulation which would require
the UK to take a fairer share of asylum seekers, or even to take responsibility
for the hundreds of children stuck in the Calais camps or risking their lives
to join family members in the UK. Since being ordered to by a court in a test case, the Home Office has brought just a
dozen or so children and one vulnerable adult from northern France to the UK.

British foreign policies have,
according to many commentators, helped to create the refugee crisis. But far
from taking responsibility, the Foreign Office is actively downgrading the role
of human rights in foreign policy, systematically subordinating them to trade
and security concerns according to the UK director of Human Rights Watch, David
Mepham in evidence to the Foreign Affairs Committee.

And while the European Parliament
voted for an EU-wide arms embargo on Saudi Arabia because of its bombing of
Yemen, the prime minister was celebrating Britain’s ‘brilliant’ arms sales to Saudi Arabia — a
breach of the Arms Trade Treaty signed by the UK in 2014, according to Amnesty
International’s Kate Allen. Some of the world’s most
authoritarian regimes are welcomed to the Security and Policing arms fair, organised by
the Home Office together with the arms industry’s trade body ADS. Meanwhile,
Amnesty International reports that the Department of Business,
Innovation and Skills’ National Contact Point, which monitors compliance with
OECD guidelines on (inter alia) human rights by multinational
corporations operating abroad, is systematically letting multinationals
including G4S and mining corporations off the hook.

Legal redress curtailed

Amnesty’s annual report on the UK for 2015-16 documents
concerns raised by the UN Human Rights Committee on the independence and
impartiality of the Intelligence and Security Committee, which was tasked with
investigating UK complicity in torture, after its failure to pursue the hobbled
Gibson inquiry’s interim conclusions on
British involvement in rendition and support for torture.

Meanwhile, the government continues
its fight to prevent claims about British complicity in unlawful rendition from
being heard in court at all. In November the Supreme Court heard the
government’s appeal against a ruling that Libyan dissidents kidnapped and
returned to Gaddafi’s dungeons had a right to a hearing in a UK court. But even
if the case does get heard, the plaintiffs are likely to be shut out from much
of the evidence, under the secret evidence provisions of the 2013 Justice and
Security Act, condemned in a report for the European Parliament’s Civil
Liberties, Justice and Home Affairs Committee as a threat to the rule of law.

The government’s attempts to
curtail legal redress for victims of human rights abuses by British soldiers in
Iraq have taken a different form.

Although the Ministry of Defence
has so far paid out around £20 million in compensation to Iraqi
civilians in settlement of 323 claims of torture, inhuman or degrading
treatment and unlawful detention (leaving over 600 civil claims and 1,400
related cases of judicial review pending), the MoD and the prime minister have publicly vilified the lawyers involved in the
cases. Another tactic to stop the cases reaching court has been to cut off
payment for them, through curtailing ‘No win no fee’ agreements and imposing a
residence test for legal aid, which denies legal aid to anyone without one
year’s lawful residence in the UK. The High Court ruled that, since access to
justice is a fundamental right, and ‘he who is subject to English law is
entitled to its protection’, the residence test unlawfully discriminated
against foreigners. The Court of Appeal reversed the ruling, and the issue is
currently before the Supreme Court.

Apart from cutting legal aid, other
ways in which the government has sought to restrict access to the courts for
those without ample means include pushing up court fees, in some cases up to £10,000, tightening rules for judicial
review and abolishing immigration appeals except those raising asylum or human
rights claims.

In the fields of asylum support and
immigration detention, the lack of accountability is particularly striking, as
even successful legal challenges result in no change to policy. A successful
judicial review in 2014 of the home secretary’s freezing of asylum support for
three years at an unliveable amount resulted in a new decision, but no increase – and since then, the rate for
children has been slashed, and the Immigration Bill proposes to remove support
from most refused asylum seeking families, and to abolish the right of appeal
against refusal or withdrawal of support (which had a success rate of over 60
percent). Similarly, despite six
judicial rulings since 2011 that detention has amounted to inhuman
treatment for particularly vulnerable immigration detainees, millions of pounds
paid out to hundreds of detainees for unlawful detention, a strongly worded
all-party parliamentary group report, a Westminster Hall vote by MPs and
a House of Lords vote, the government sets its face against curtailing the
use of immigration detention or imposing a statutory time limit.

And despite the suspension of the ‘detained fast track’ for
asylum seekers following court rulings that the speed of decisions and appeals
made it so unfair as to be unlawful, and the Shaw review which called for a complete ban on
the detention of pregnant asylum seekers and a much-reduced use of detention
for others, survivors of torture, trafficking and other ill-treatment continue
to be detained.

Dissent stifled

Political accountability too has
been attacked, as charities and voluntary sector organisations have seen their
freedom to criticise government policy limited by restrictions brought in
through the 2014 Lobbying Act. This was followed up in February
2016 by a Cabinet Office fiat that all organisations receiving government
funding are to be forbidden from criticising the government. The
critical voice of the Third Sector, vital for revealing and correcting abuses
and excesses, is being muffled, if not silenced.

More and more policing

At the same time as the government
seeks to reduce its own accountability, it makes more and more demands on its
citizens, in a trend that has been growing for decades but is now accelerating
to an extraordinary extent. Citizens must submit passively to more and more
policing: of their bodies, through scans and searches, biometric controls and
CCTV; their vehicles, through automated number-plate recognition (ANPR); their
communications, through ‘bulk interception’, data retention and mining; their
opinions and associations, to ensure they are not ‘extremist’. Proof of
identity and of lawful status is required to receive hospital treatment; to get
a job or enrol in higher education; to get married; to claim any welfare
benefit, or social or emergency housing; to rent a room or a flat from a
private landlord; and under the Immigration Bill going through parliament, to
get a driving licence or to open and retain a bank account. Under the Bill,
designed to embed a ‘hostile environment’ for the undocumented, drivers must
submit to being stopped not for alcohol consumption but to prove lawful status
in the UK, to avoid arrest, and confiscation of their vehicle.

And it is not just police and
immigration officers who police migrants. Staff in hospitals, in local
authorities, universities and colleges, prospective employers in the private,
voluntary and public sectors, bank staff and landlords, as well as road haulage
contractors, train, airline and shipping operators have all been conscripted
into immigration control, with varying degrees of coercion, in a process which
is now more or less taken for granted.

The penalisation of carriers who
unwittingly bring ‘inadequately documented’ migrants into the UK is decades
old. Now, the government seeks to increase penalties from £2,000 to £7,000 per
passenger. But why should truck drivers, train operators, shipping companies
and airlines be regulated and penalised for something which, unlike say
passenger safety, is extraneous to their business? Not to mention that the
treatment of people as contraband offers disturbing echoes of the treatment of
slaves as cargo in earlier centuries.

Employer sanctions have been used
for twenty years to enforce policies restricting rights to work for asylum
seekers and migrants. Now, fines are set to double and prison sentences to increase
from two to five years for employers hiring undocumented workers. The
Immigration Bill contains powers to revoke licenses, to close temporarily
businesses employing unauthorised workers, or put them under ‘special measures’
with periodic Home Office inspections. But why should employers be responsible
for the immigration status of their employees? And why should this be a higher
priority than paying the minimum wage or providing decent and safe conditions?
Enforcement of minimum wage and health and safety protections is inadequate and
underfunded, and the power of unions to protect workers’ rights is undermined
by legislation to restrict trades union activity and rights to take industrial
action which violates ILO Conventions as well as human rights law.

These penalties for carriers and
employers of undocumented people are enshrined in EU law. But the UK has gone
further down the road of co-opting its citizens into immigration policing than
most European countries.

Universities and colleges have for
several years been required to police their international students’ enrolment,
attendance and performance for the Home Office, on pain of losing the right to
enrol them. Marriage registrars have since 2002 been under a duty to notify the
Home Office of any suspicious proposed marriages (where one party is a non-EU
national who may be entering the marriage for immigration purposes). Now,
private landlords, who are free to charge what they like and whose freedom to
evict tenants is only lightly regulated, can be fined up to £3,000 per occupant
for renting property to those without a right to stay in the country. The
Immigration Bill proposes even harsher penalties, including sentences of up to
five years’ imprisonment for knowingly renting to undocumented migrants.

Hospitals, local authority housing
and social service departments, banks – all must check immigration status
before providing their services. In all these ways, citizens, in their capacity
as employers, higher education providers, landlords, health professionals, bank
or financial service workers, marriage registrars, transport workers, are expected
to be accountable to the state for policing migrants, and are required to be so
on pain of penalty. Since rights to work, to housing and health care are all
enshrined in international human rights law, these provisions in fact coerce
citizens’ compliance with violations of human rights, sometimes (in the case of
employers and landlords) on pain of criminal penalties.

The duties of health professionals,
employers and landlords, unlike marriage registrars and colleges, are to deny
jobs and services to the undocumented, and do not extend to denunciation. But
many workers in these fields may not appreciate the distinction, and it may be
that they account for the bulk of the 75,000 allegations added to the Home Office’s
online Intelligence Management System in 2013. If not, the volume of
denunciations suggests that the poisonous climate engendered by the unremitting
scapegoating of migrants, and undocumented migrants in particular, has fed a
public appetite. An official government website encourages citizens to inform
on undocumented migrants, and supplies various ways of doing so anonymously, by
phone or online. It advises “in an emergency, dial 999 and ask for the police” — suggesting that being undocumented may be as inherently threatening as waving
a gun.

Migration is not the only field
where citizens are encouraged to inform on each other. In the field of welfare
benefits, similar vilification of claimants has led to an even greater volume
of benefit fraud allegations, with more than 1.6 million denunciations by
members of the public between 2010 and 2015, of which, according to the Observer, 85% were
unfounded. (The proportion of unfounded ‘illegal immigrant’ allegations is
unknown.)

Policing ‘pre-crime’

That statistic of 85% is
fairly close to the 80% of referrals to the
counter-terrorism programme, Channel, rejected as unfounded between 2006 and
2013. But since July 2015, such referrals form part of a new policing duty to
which citizens are subject. Teachers and university lecturers, health and
social workers, local authority workers, even early years and childcare
providers, must under the Counter-Terrorism and Security Act 2015 “have due
regard to the need to prevent people from being drawn in to terrorism.” Statutory guidance makes it clear that this means (amongst other things)
spotting those who might be potential terrorists (according to extremely broad
criteria) and reporting them to a police-dominated panel, Channel, which
is entitled to demand information on them from partner agencies in order to
decide on ‘pre-crime interventions’. Those professionals who fail to comply
with the Prevent duty can be made subject to mandatory orders compelling
compliance, and in the final analysis could be sent to prison for contempt. But
the government is unlikely to want or need to resort to such draconian
enforcement, given that for most of those under the new duty will comply – in
fact over-comply – for fear of losing their job. Since most professionals have
no idea what they’re looking for, and the guidance is so vague as to be almost
totally subjective and indicates that if in doubt, refer on a ‘precautionary
basis’, it is no surprise that those referred to the Channel panel are
disproportionately Muslim, or that such a high proportion of referrals are
unfounded.

Now that monitoring obligations
have been imposed on education, welfare and health professionals among others,
extreme concern has been voiced by teachers, university and college heads, child care and social workers, health professionals – in fact representatives
of all those tasked with the new duty, as well as by lawyers concerned with
counter-terrorism including the UK’s own “counter-terrorism watchdog” David Anderson QC. The scope of the duty, how
it is being interpreted, its impact on the way professionals comply with their
own codes of conduct, on the rights of those affected, and on the relationship
of trust between the professionals and the children, young persons and families
with whom they work, have all been questioned. As Mayssoun Sukarieh and
Stuart Tannock point out, it goes further: the whole purpose of education in
particular is subverted by the ‘inversion’ whereby “instead of working with
students to train their critical and analytical lens on the state and societies
that shape their lives – to foster the ‘healthy doubt … which is the best
safeguard against dogmatism and acceptance of authoritarianism …’ the anti-radicalisation
movement asks educators to work hand in glove with the state security apparatus
to train their analytical lens on students themselves”.*

Although, in relation to children,
the duty is described in terms of ‘safeguarding’, it is apparent that no
thought has been given and no responsibility taken for the impact of
intervention on children, young people and their parents, nor to the impact on
the professionals responsible for delivering the duties.

As educationalist Bill Bolloten has
noted, “It is a new and dangerous step for schools to include children’s
radical political views and expressions of dissent as part of their
safeguarding provisions.”

Perhaps it is time we asked what
kind of society we are morphing into, which demands that citizens rigorously
police our own and others’ speech, conduct and associations. It is not
intuitively obvious that democratic states should require citizens and civil
society to participate in policing, whether of national security or of
immigration. How have we allowed it to happen, that so many of civil society’s
institutions have been co-opted and conscripted in a war against ‘extremism’
and/ or irregular migration? And what can we do to reverse it?

This piece was first published here by
the Institute of Race Relations. Links to related IRR articles follow below. A
shorter version of this article was published in the London Review of Books
(Vol 38, No. 7, 2016). View here.

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